Opinion 12-01

January 26, 2012

Digest:         A judge is not required to disclose that he/she consulted with court security personnel about possible security threats arising from a document admitted into evidence in a pending matter; and the judge may continue to preside over the matter as long as the judge believes he/she can be fair and impartial.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(C); 100.3(C)(1); 100.3(E)(1); 100.3(E)(1 )(a)(I); 100.3(E)(1)(a)-(e); Opinions 11-86; 11-64; 08-170; 05-78; 99-78 (Vol. XVIII); People v. Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge presiding over a custody case states that one parent introduced into evidence a letter written by the other parent, before the birth of the subject child, which contained statements expressing a desire to use violence against federal judges. The judge concluded that the letter raised security concerns and reported the letter to court security personnel. The judge asks whether he/she must disclose that he/she advised court security personnel of the potentially threatening letter and whether that report now disqualifies the judge from presiding over the matter.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][I]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14).

         A judge also must diligently discharge his/her administrative responsibilities (see 22 NYCRR 100.3[C][1]) and may, among other things, consult privately with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities (see 22 NYCRR 100.3[B][6][C]).

         Where, as here, the circumstances here do not appear to trigger specific grounds for disqualification (see 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14), the question is whether the judge's impartiality "might reasonably be questioned" (22 NYCRR 100.3[E][1]). The Committee has previously advised that a judge is not disqualified from presiding merely because one party threatens the judge or the judge's family, provided the judge believes he/she can be fair and impartial (see Opinions 11-86; 99-78 [Vol. XVIII]). Thus, absent other factors, the determination whether a judge can be fair and impartial in a case after a party threatens the judge or his/her family is a matter confined solely to the conscience of the particular judge (see Opinions 11-86; 99-78 [Vol. XVIII]; People v Moreno, 70 NY2d 403 [1987]). Here, the threatening letter was not even directed to this judge, as it was written before the subject child's birth. In the Committee's view, the inquiring judge may continue to preside over the custody matter, provided the judge believes he/she can be fair and impartial, a matter entirely within the judge's discretion (see People v. Moreno, 70 NY2d 403 [1987]).

         The Committee previously considered a judge's disclosure obligations upon receiving information about ex parte threats (see e.g. Opinions 08-170; 05-78). These Opinions are inapplicable here, however, because the judge did not receive the letter through an impermissible ex parte communication (see 22 NYCRR 100.3[B][6]). To the contrary, all parties in the custody matter in which the inquiring judge is presiding have seen the letter and are aware the judge has seen it since the letter was received in evidence.

         Thus, the only question now is whether the judge must disclose the judge's communications with court security personnel about whether the letter in evidence poses a possible security threat. The Committee believes the Rules Governing Judicial Conduct do not require judges to disclose these security communications, particularly possible security threats.¹

         The Committee concludes that the inquiring judge may, in his/her discretion, choose to disclose that he/she reported a potential security threat, but is not required to do so.

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     ¹ Even assuming (without deciding) that undisclosed communications between a judge and court security personnel regarding possible security threats might be considered "ex parte" in nature, they are fully permitted here, as it is clear that a key function of court security is to aid judges in performing their judicial duties by addressing possible security threats (cf. 22 NYCRR 100.3[B][6][c] [providing that a judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities]).